What Nonprofits Need to Know About DEI: Executive Orders, Memoranda, and Press Conferences

On February 5, 2025, AG Bondi was sworn in a got right to work implementing President Trump’s Executive Orders. She issued a series of Memos targeting DEI programs within the Department of Justice, and promising to pursue criminal investigations against private companies with DEI policies.

Nonprofits focused on the well-being of marginalized communities, and/or the creation of a more pluralistic society should be feeling confused, unsettled, or downright scared. Whether by Executive Orders, Memoranda, or press conferences, DEI is being blamed for many of society's ills – everything from workplace discrimination to plane crashes.

While the paperwork and rhetoric swirl around us, we should focus on three real and perceived threats:

1. Legal threats to intimidate organizations into silence.
2. Actual criminal investigations for racial discrimination.
3. Elimination of Federal funding for “DEI work.”

Legal Threats

Donald Trump has always used litigation as a business strategy. He has been involved in almost 4,000 lawsuits during his career, ranging from contractor disputes to defamation to election fraud. Winning is only one favorable outcome. The others are intimidation, delay, financial ruin, and surrender. Everyone, including nonprofits, is susceptible to this threat.

Unfortunately, there is not much comfort knowing the law will likely be on our side. DEI is not illegal. It’s a concept - an acronym that has been demonized. Discrimination is illegal. Nonprofits can talk about DEI all they want.

However, what nonprofit can endure months or years of disparaging social media posts, letters, inquiries and/or formal complaints?

Criminal Investigations

A company or nonprofit that discriminates on the basis of race, color, religion, sex, and national origin can be prosecuted under existing federal laws. This applies to hiring, promotions, and contracts. Due process is still required, and claims must be adjudicated before a judge or jury.

Nonprofits (and anyone else) engaged in discrimination should be held accountable. Unfortunately, the concept of discrimination has changed because these laws are no longer being used for their intended purpose – to protect historically marginalized communities. They are being used to prevent efforts to level the playing field and create a more equitable workplace, marketplace and society.

Funding Restrictions

Nonprofits that receive federal funding for programs supporting Black, Brown, or LGBTQ+ communities are not in a good place. The Executive Branch has broad discretion over grant administration so funding decisions can be arbitrary and ambiguous.

The courts can provide relief. A court stayed the President’s effort to stop all grants, loans, and other financial assistance programs pursuant to Executive Order last week. The stay is temporary. The legal process is expensive and takes time. Most nonprofits cannot survive extended funding gaps or legal battles.

Tough Questions for Nonprofits

We need to answer some tough questions to determine our strategy going forward.

• Do we believe in our mission?
• Do we believe our beneficiaries deserve our help?
• If not us, who will help our beneficiaries?
• Do we really matter to the Administration in this culture war?

We need to make a tough decision. Do we stop advocating and providing because we are afraid of what may happen, or do we continue our work and face challenges if/when they arise?

What Can Nonprofits Do?

? Don’t panic—but don’t be naive.

• Legal threats are often meant to intimidate, not enforce. Many policies will be challenged and overturned in court. We have to see how it plays out.

? Prepare alternative funding sources now.

• If your nonprofit relies on federal grants, start looking for corporate, foundation, or grassroots funding ASAP.

? Document everything.

• If your funding is revoked or you face legal threats, document how policies are changing. This information will be critical for legal challenges.

? Stay focused on impact, not acronyms.

• We don’t need DEI. Stay committed to diversity, equity and inclusion. Look for employees and/or vendors from (1) communities that historically faced economic or civic exclusion; (2) attended under-resourced schools or were first-generation professionals; (3) have navigated systemic barriers—whether in education, employment, or civic engagement; and (4) understand the challenges of underinvestment—because they’ve lived it or worked to change it.

? Stick Together.

Historically, we’ve done pretty good as a sector. Support and look for leadership from these organizations:

• Independent Sector – A national coalition that advocates for public policy affecting nonprofits. (www.independentsector.org)
• National Council of Nonprofits – Offers legal guidance and advocacy tools. (www.councilofnonprofits.org)
• Public Interest Law Center – Provides legal assistance to nonprofits facing civil rights challenges. (www.pubintlaw.org)